The problem
ANANYA VAJPEYI
(Seminar, Nov.2010)
Sixty years of constitutional democracy and the rule of law in India would seem, on the face of it, like an occasion for taking stock and for celebrating the great Indian political experiment. The founding fathers and mothers put a structure in place, enshrined a nation’s dreams in an impressively liberal text, and six decades later, it appears we still abide by that vision. All around us, there are polities in various kinds of malfunction – Pakistan, Afghanistan, Bangladesh, Nepal, Sri Lanka, Myanmar – and to our north, a prosperous but authoritarian China. India’s Constitution makes the country an oasis of rights, representation and justice in a desert of flailing, failing or otherwise flawed states.
If only. ‘Between the idea/And the reality…/Falls the shadow,’ wrote T.S. Eliot in his great poem, ‘The Hollow Men’. So much of India is in such deep crisis that the promise of the Constitution, our proudest possession, our charter and our pillar, is beginning to seem utterly hollow. For millions of Indian citizens, the mere existence of the Constitution does not alleviate poverty, dispense justice, provide security, guarantee rights or compensate for long-standing inequity. Tribals, religious minorities, Dalits, women, and the poorest of the poor, oftentimes overlapping categories, suffer so acutely that they may as well be living in a rudderless state, where no organ – electoral, legal, legislative, administrative or military – looks out for their welfare. In the border states of the Northeast and Jammu and Kashmir, a state of exception to the rule of law, designated by the extraordinary dispensation, the Armed Forces Special Powers Act (AFSPA), suspends the constitutional regime in any case, so that citizens may not even have the expectation, if only to be disappointed, that their rights will be protected.
It could be argued that the Constitution, as the textual blueprint of the republic, is not responsible for its own marginalization, violation, or suspension. That it was conceived in a certain era, written in a certain spirit, and promulgated in good faith by the best political and legal minds active in India around the time of independence. That a document first articulated and steered by the likes of B.R. Ambedkar, Sardar Patel, Jawaharlal Nehru, Maulana Azad, Rajendra Prasad, K.M. Munshi and Constitutional Advisor B.K. Rau, continuously guarded and carefully interpreted by three generations of lawmakers since, is as good as it gets for an overly large, unremittingly poor, vexingly diverse and precariously free post-colony like India. That we may criticize the Constitution; we may lament its disrespect or point out its inefficacy in many parts of India, but without it, we would still be colonized, if not by the British then by undemocratic, militarist, communal or other sorts of nonprogressive strains within the Indian political spectrum.
Better to have an excellent constitution in the letter if not in practice, than no constitution at all, the objector says, and we should be grateful for the moral commitment and practical foresight of our founders. They took three years to draft the text and tried to correct for every problem that they could think of. They overcame tremendous disagreements to achieve consensus. Without that inaugural effort and investment we would be nowhere today, as a nation or even as an idea.
There is some merit to these objections. The Constitution provides a stable point of reference, so that we are able to describe egregious attempts to hijack state power, undermine democracy, disturb the peace and deprive citizens of their rights as ‘unconstitutional’. We may also amend the constitution to make it more responsive to present-day needs and to unanticipated developments in the polity, economy or society. The Indian Constitution has been amended a hundred times, a factor that arguably contributes to its survival. If there were no constitution, or if it did not look anything like it does, we would not be in a position to criticize, condemn or resist some of the gravest challenges the republic has faced thus far: the Emergency, Ayodhya, the over-extension of the AFSPA in Kashmir, to name just a few of many.
The Constitution is an orienting mechanism, a talisman, a symbol, an everunrealizable ideal and a permanent mirror held up to our nation. Governments may come and go, wars and insurrections may disrupt normal life, ideologies may wax and wane, the economy may ebb and flow. But in principle it’s always possible for India, as a nation with a democratic, pluralistic, flexible and durable Constitution, to perform a reality-check and pull itself up by the bootstraps. Survivors of the Holocaust like Hannah Arendt and Primo Levi used to say the worst thing about the Nazi regime was that anything was possible in that world without the law. The Constitution preserves the aspiration that in India at least, it is not the case that anything might be possible; that beyond a point, you cannot desecrate the rule of law and keep on getting away with it. The buck stops somewhere, even if only at a vanishing point, infinitely far from the here-and-now.
The Constitution of India, as an intellectual artefact, owed its inspiration and its form, in the first place, to its American, French, Canadian and Irish predecessors, to the legacy of English parliamentary democracy, to Anglo-Indian law, and to British jurisprudence. Indian liberals and modernists are quick to emphasize this genealogy of the Constitution. But this document did not come into being in an epistemological vacuum, as it were – and it hardly arrived in the mail, from overseas.
Rather, it was born into a culture with a long and complex history of legal and legislative discourse, one or more textual traditions dealing with the law, and protocols of argumentation, exegesis and interpretation that are among the most ancient, the most rigorous, the most exacting and the most continuous in any part of the literate world. Many of the members of the nationalist movement, of the Constituent Assembly and of the first legislature were formally trained as lawyers in England, but also conversant with Indic legal and political traditions, and with ideas of ethical sovereignty, righteous rule, and normative justice derived from Brahmin and Islamic codes of pre-colonial provenance.
To this mixed inheritance of the founders of the republic – modern and traditional, Western and Indic, Christian, Hindu and Muslim, imported and indigenous – should be added the lessons of the preceding thirty years of Gandhian politics. Gandhi’s harnessing and shepherding of disparate anti-colonial, radical and nationalist energies was successful in ousting the British Raj and establishing Indian sovereignty, but the Mahatma himself never thought in terms of translating swaraj into a Constitution. His assassination in early 1948 forever ended the possibility of any eventual compromise he might have made with the idea of a constitution. Others tried to theorize a so-called ‘Gandhian Constitution’, incorporating some ideas about village-level democracy and panchayati raj, without much uptake from the Constituent Assembly as a whole.
Ambedkar’s closing address to the Constituent Assembly at its penultimate session in November 1949 explicitly asks that ‘the bloody methods of revolution’ – in which he includes, somewhat incoherently, ‘civil disobedience, non-cooperation and satyagraha’ – be left behind in favour of ‘constitutional methods of achieving our social and economic objectives.’ The Chairman of the Drafting Committee went on to say: ‘These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.’1 In other words, he was closing the chapter on Gandhian struggle. In the same speech he chastises Socialist and Communist critics of the Indian Constitution, invokes the American Thomas Jefferson and the British John Stuart Mill, and reminds his colleagues of democratic tendencies in the long-ago Buddhist republics of the subcontinent.
The struggle over the genealogy of political thought in India is apparent even at the very moment that the Constitution is completed and presented to the nation. Hardly two years after independence and soon after Gandhi’s death, Ambedkar is making it clear how he wants to locate the Constitution in a longer history of state-building in India: a position that by no means goes uncontested by his colleagues both within and outside the Constituent Assembly. Tellingly, within another few months, Ambedkar had already resigned his position as Law Minister in Nehru’s cabinet.
Historians of decolonizing and post-colonial India, and of the republic’s foundation and subsequent fortunes, from Granville Austin to Ramachandra Guha, have pointed out the different strands in the Constitution’s DNA: the Government of India Act of 1935, which provides an element of ‘colonial continuity’; the examples and models of other constitutions belonging to modern democratic republics older than India; Gandhian swaraj, a dormant gene or a road not taken; a ‘national revolution’, whence the imperative of democracy, and a ‘social revolution’, whence the impetus for equality.
Yet Ambedkar is right to caution his fellow-founders that while liberty, recently achieved, is to be celebrated, neither equality nor fraternity have deep roots in Indian society. He even goes on to make a fine distinction between the idea of India being based on a ‘people’ versus a ‘nation’, and points out that mere political independence for India does not entail or guarantee Indians becoming a ‘nation’ in the true sense of that term. These notes of scepticism and criticism at the very dawn of the republic are jarring, but also indicative of how genuine Ambedkar’s engagement was with the problem of constructing a new political paradigm for India. He wasn’t going to pretend that simply writing a constitution was an answer to India’s long history of entrenched inequality and persistent injustice: and in this respect, we can do no better than follow in his footsteps today, on a significant anniversary of the Constitution.
Of course, it should also be immediately apparent that to an extent Ambedkar’s rejection of what he calls ‘the Grammar of Anarchy’ is premised on a misreading or misrepresentation of the Gandhian revolution, because it completely elides and ignores its core value: non-violence. But then again, perhaps this is understandable, given the fundamental differences between Gandhi and Ambedkar on a number of issues, including caste, religion and passive resistance – differences that were never reconciled to the very end of either man’s life, and have not been reconciled by their respective followers to date.
The late D.R. Nagaraj showed us in his brief but important career as a social theorist interested most of all in inequality and emancipation, that the disagreement between Gandhi and Ambedkar on caste was no minor quibble. Caste goes to the very heart of the people, the nation, the state and the Constitution of India. We could say that the Constitution was the most comprehensive attempt ever made to undo caste society and rebuild India on the basis of equal citizenship, fundamental rights, and compensatory social justice.
Six decades later, the goal of an egalitarian and just society still being elusive, this continues to be one of the Constitution’s main raisons d’être. While the Constitution seeks to create a flat community of citizens in place of an intricate hierarchy of caste-based groups, the historical complexity, the political potential, the religious meanings and the social practices associated with caste identities have in large measure remained intractable to the legal and administrative measures envisaged by the founders, principally Ambedkar. The alignment between the social teleology of the Constitution and Indian social reality has gone progressively awry.
Caste, after an initial recession in the Nehru years, has enjoyed a new lease of life in post-Mandal, globalizing India. Questions around caste-based political activity, electoral democracy, reservations in education and employment, and most recently around the idea of a caste census, continue to be central to Indian politics and legislation. If the Constitution, and especially Ambedkar among those responsible for its drafting, anticipated a withering away of caste identities as the republic evolved, this has not occurred – quite the opposite.
Besides caste, another area of public life in which the Constitution is at the very centre of attention, is at the margins of the Indian Union, i.e., in the eight states where the AFSPA is in effect, either because it was imposed sometime in the past and never removed, or because it is seen to be actively needed in an ongoing way. Arguably, if the government is inclined to suspend the rule of law and enforce what is effectively martial law, then it can hardly worry that the Constitution is not sufficiently respected in these parts of the country. Rationally, the state cannot both suspend constitutional rights and at the same time demand the citizens’ allegiance to the Constitution of India.
But this is precisely the situation in the Northeast and in Jammu and Kashmir these days, particularly in the latter. Except for the provision of periodic elections, the Constitution is not available to the people of these regions as their bulwark and their appeal against state excesses, especially military brutality. When these very people, beleaguered and cast into a state of exception, disavow their faith in the Constitution, they are characterized as antinational and secessionist. When they then go on to really demand separation from the Union, we wonder why they do not feel love and loyalty towards our splendidly liberal and democratic Constitution.
This cycle of exception and alienation has gone on for over 50 years in the Northeast and over 20 years in Kashmir. The breaking point may well be upon us, as far as Kashmir goes. The message is clear: a constitution in suspension is a recipe for rebellion, secession and the implosion of the Union so painstakingly and so tenuously constructed in the early years of the republic, by use of a combination of methods, fair and not-so-fair. The Indian state must rethink the purpose, the efficacy and the implementation of the AFSPA, as well as a host of other extraordinary laws that undermine, weaken and can ultimately destroy the writ of the Constitution or worse, engender in the public opinion a terminal aversion against it.
A priori, every single part of this country deserves to be governed by the representatives of the people, duly elected and installed in office, and authorized to administer the full panoply of institutions of the executive, the judiciary, the legislature and the armed forces. The sun of the Constitution ought to shine in every dark corner of India. Simply put, those who are left out for long, want out for good – rightly, if regrettably, so.
Tracts of India directly affected by Maoist insurgencies, inhabited by autochthonous populations, rich in mineral resources and potentially the most attractive to capitalist corporations, are also, increasingly, zones of constitutional crisis. Again, logic very similar to the inflamed borderlands can be seen unfolding before our very eyes in the tribal heartlands: people don’t want a constitution that fails to protect their interests or guarantee their basic rights, livelihood and security – not because it is hostile to them in and of itself, but because it is unavailable to them on account of some or other type of emergency.2
The mere holding of elections from time to time has not contained unrest nor reconciled disaffected populations to state power, in many parts of the Northeast, in J&K, and in Naxalite areas. State and non-state actors complain that separatist and insurgent leaders, whether Kashmiris or Nagas or Maoists, don’t want to come to the table for talks; refuse to contest elections and form elected governments; insist on using armed methods to spread their ideology and make their demands; counter policy with violence; invite deadly counter-insurgency operations upon themselves and hapless civilians and, in general, do not uphold constitutional norms of negotiation. Indeed.
Rebels against the idea of India have picked up the gun at every point since the very inception of the republic. But it has been the state’s prerogative to either follow suit and abandon the constitutional path, or hew close to the Constitution’s liberal vision and attempt to bring in estranged sections through a combination of persuasion and incentives. By enforcing extraordinary laws, by sending in armed forces, by granting impunity to soldiers and paramilitaries for their actions against armed or unarmed civilians, by denying citizens redress, justice or compensation, by creating a war-like situation for a population that has political, social, cultural and economic grievances possible to address without force, it is the state that sets aside the Constitution. The Indian state has done this too many times, in too many places, and for too long.
It is time for citizens in the so-called ‘normal’ parts of the country to consider how they want to defend their Constitution against such misuse and ill-treatment by the state, a procedure that leaves millions of people exposed to both everyday as well as excessive violence, and ultimately turns them against India. If the Indian Union sees any attrition to its territory in the coming years on account of separatism and civil strife (not such an unlikely scenario as hawkish policy-makers like to believe), this will have come to pass at least partly because the state allowed the cancer of exception to eat away at the body politic, and did not administer the medicine of constitutional reinstatement and restitution in time. It bears repeating that periodic exercises in the electoral process do not always prove to be a sufficient counterweight to the toxic effects of the AFSPA, even if elections are relatively free and fair (a tough challenge), and even if significant percentages of the relevant populations do turn out to vote.
The state’s reasoning for why military, paramilitary and police must replace civil agencies in the work of everyday governance, a step which can and does go horribly wrong, is that disruptive violence (from secessionist and insurgent groups) has to be met with restorative counter-violence (from the state) in order to ensure overall security for the population, and preserve the integrity of the Union of India. Defenders of the AFSPA insist that this is a sound rationale. But inevitably, questions arise: What are the limits of the immunity that such an extraordinary law grants to the armed forces, when does the justifiable control of terror become overkill, and when should a quantitative assessment about the necessary degree of force give way to a qualitative judgment about whether force is necessary at all, over and above alternative – peaceful – means of addressing the situation?
There appears to be a dire need for a system of checks-and-balances, perhaps also originating from the Constitution, to be instituted, so that the explicitly democratic mandate of the Indian republic may be strengthened against an always lurking authoritarian tendency (a legacy of the post-colonial state’s colonialist and imperialist predecessor).
It may be true that extremist and terrorist organizations have as little regard for civilian life and safety as do trigger-happy paramilitaries, and that both sides violate human rights and abuse their armed power. But because the state is by definition the stronger party, and the one authorized to govern, the responsibility of exercising restraint, minimizing collateral damage, and setting an example of honourable conduct lies first and foremost with the state. This is a responsibility that it cannot ever relinquish, no matter what the provocation, and no matter how difficult the conditions for negotiation and dialogue with enemies of the state. The Constitution is what can make the difference between India and centrifugal anarchy (Pakistan), India and soulless growth (China), India and exclusivist notions of citizenship (Israel), India and unchecked consumerism (the US), India and any form of power that might be unethical and inimical to human flourishing.
The Constitution of the Republic of India, in a country that has produced more texts in more languages for more centuries than any other nation in the world, is a singular text. It is comparable to no other text: not the Bhagavad Gita or the Qur’an, not the Holy Bible or the Guru Granth Sahib, not the Ramayana or the Mahabharata, not Manu’s Dharmashastra or Kautilya’s Arthashastra, not the edicts of Ashoka or the diaries of Babur, not the inscriptions of Samudragupta or the poems of Bahadur Shah Zafar, not Gandhi’s Hind Swaraj or Nehru’s Discovery of India, not Tagore’s national anthem or Ambedkar’s The Buddha and His Dhamma. It is completely unique and unprecedented in the history of India, crowded as that history is with innumerable texts.
For those who ask, ‘What can a mere text do?’ we need only turn to places where this text has been suspended, neglected, ignored or transgressed, and we find injustices and atrocities of every kind rampant. A text like the Constitution can do exactly what such a text is supposed to do: nothing more, and nothing less, than upholding the world. After 250 years of colonial rule, nearly a century of imperialism, incessant soul-searching, and the most profound political and intellectual effort undertaken by hundreds of thousands of individuals across the length and breadth of the subcontinent, India finally became an independent nation-state on 15 August 1947. After three years of Constituent Assembly debates, on 26 January 1950 India gifted itself the chance to unlock its society and set itself free.
Given a very old and civilized culture, the Indian nation, protected by its founding ideals, served by resilient institutions, and fired by new economic opportunities, ought to be able to find a way to allow its people to live with dignity, in peace, and with the means and the prospects to better their lot. If 60 years after the founding of the republic millions of citizens still remain deprived of their liberty, then somewhere along the way India has forgotten that the key to its emancipation lies in its own priceless, peerless Constitution.
* Thanks to Ramachandra Guha, Dilip Simeon and Sanjib Baruah for detailed comments on earlier drafts of this essay. D.R. Nagaraj’s classic The Flaming Feet has just been reissued from Permanent Black (2010), together with his previously unpublished writings and a critical introduction by Ashis Nandy, edited by Prithvi Datta Chandra Shobhi. The complete text of the Indian Constitution is accessible at: http://indiacode.nic.in/coiweb/welcome.html
Footnotes:
1. Constituent Assembly, Friday, 25 November 1949.
2. If anything, the 5th Schedule of the Constitution specifically addresses Scheduled Tribes and Scheduled Areas, but are ruling parties implementing it in the states affected by Maoism?
